A woman in Beirut holds up a sign reading in Arabic "in Lebanon, corruption is the basis of rule", during a demonstration at the entrance of the Justice Palace in the capital Beirut on November 6, 2019. (Photo by ANWAR AMRO/AFP via Getty Images)
Analysis

Towards an Independent Judicial Branch in Lebanon? Part 2: The Administrative Judiciary

In the first part of this two-part analysis on Lebanons judicial branch, the civil judiciary was introduced, highlighting how it is rendered deficient and incapable of holding power to account due to the system that governs it which makes it wholly under the thumb of the countrys political class, which can choose to reward pliant judges and punish those who stand against them.

This second part will introduce and focus on the smaller, but no less important, administrative judiciary, as well as a law proposal submitted very recently to render it independent and free it from the claws of Lebanons political class.

What is the administrative judiciary?

Established in 1924, the administrative judiciary—also referred to as the State Council, or Majlis al Shura in Arabic, is the judicial branch initially responsible for looking into and resolving disputes that concern public law. In other words, it looks at and issues verdicts regarding disputes where one of the litigants is the Lebanese state or any public entity, and resolves any conflicts that may come to the fore between different public entities. Over time, and most notably in 1975 when a new decree organizing the State Council was passed, the councils duties and responsibilities have expanded. It is now tasked with providing binding and non-binding legal counsel and opinions on draft legislative decrees and draft laws prepared by the government, respectively, to ensure their validity and legality. It can also be consulted on a wide array of legal documents such as international treaties, circulars passed by ministers, or any issue on which the Council of Ministers may need legal advice. In 2000, a law was passed to establish First Instance administrative courts in all of Lebanons governorates, ostensibly to make it easier for citizens to have access to the State Council, but an implementation decree to establish such courts was never passed and “the State Council remain[s] the one and only authority on administrative cases.”

The State Council is composed of seven core institutions: five judicial chambers that examine cases involving misuse of authority, public contracts, building permits, municipal elections, taxes and public sector employees; one administrative chamber that provides legal counsel and opinions; and the Cases Council which looks into controversial and highly important lawsuits filed to the State Council. Overseeing these institutions is the seven-member Office of the State Council (OSC), tasked with distributing work inside the State Council, as well as transferring, promoting, and hiring administrative judges. The OSC is headed by the President of the State Council, who has very wide and far-reaching powers.

Strict hierarchy in the administrative judiciary

The President of the State Council is appointed by a decree issued by the Council of Ministers after a name is proposed by the Minister of Justice and yields significant powers within the administrative judiciary. For instance, the president of the council has the right to transfer any case from State Council chambers to the Cases Council which he heads, allowing him to influence any case that the council looks into. In addition, he heads the administrative chamber that provides legal counsel and opinions, as well as the First Chamber which looks at cases involving the misuse of authority.

The President of the State Council also wields significant power over administrative judges: he authorizes participation in conferences and the publishing of articles; he transfers legal advisors and assistants (who represent around half of the councils judges); he decides on appointing the councils judges for paid advisory posts in different ministries and public entities, which implicitly gives him the ability to reward specific judges and discriminate against others; and given that he also heads the councils Disciplinary Board, he oversees inspections on any disciplinary measure that must be meted out against poor performing judges through a judge that he appoints. This last point is particularly crucial, as there is no institutionalized framework for punishments against judges, and the Disciplinary Boards decisions cannot be contested. This gives the Board and the President much discretion when it comes to meting out punishments. In a few of the cases where disciplinary measures were taken against administrative judges, concerns were voiced that such measures were taken only to punish attempts at challenging the State Councils strict hierarchy.

What further complicates the working lives of administrative judges is that rising through the ranks is not based on merit. The OSC decides which judges get promoted and presents names to the Council of Ministers which then passes a decree based on the OSCs recommendations. This effectively means that judges from outside the State Council—such as judges in the civil judiciary—are often “parachuted” to senior positions in the State Council, such as chamber presidents. As a matter of fact, it is not uncommon for the members of the OSC or even the President of the State Council to have served in the civil judiciary before being appointed in the State Council. In addition, sectarian considerations are at play when it comes to the OSCs composition, despite the fact that there is no legal text issuing such a sectarian distribution of seats.

The State Council is a heavily hierarchical institution run in a quasi-one man show manner. Given that the President of the State Council and the OSC are appointed by the executive branch and that the seats are distributed in a sectarian manner, political interference in the administrative judiciary a fact of life.

Political interference in the State Council?

Given the systemic deficiencies outlined above, it would come as no surprise that the State Council has, at instances, been incapable of acting in the public interest and that the hands of administrative judges have been tied by those higher up in the hierarchy when attempting to conduct their work.

In 2009, the Directorate-General of Civil Aviation issued two decisions temporarily banning a small airline company, Imperial Jet, from operating its planes. The company had a six-month window to replace its planes and ensure passenger safety, but when it did not, the Directorate revoked its license. The parent company, Imperial Holding, lodged complaints to the State Council which nullified the Directorates decisions. Emboldened by these decisions, the companys main shareholder sought to pressure the Lebanese state into resolving the dispute amicably, arguing that the state should reinstate the license and pay over $180 million in damages. When the state refused, the shareholder took the case up to the International Center for Settlement of Investment Disputes in January 2015, claiming that the Lebanese state owed the company over a billion dollars in damages. A judge within the State Council prepared a detailed report which highlighted errors the Council had made when it nullified the Directorates decisions. Eventually, the state ended up largely winning the case, with the shareholder having to reimburse the costs. However, the State Council judge who prepared that report was reprimanded, rather than recognized for her efforts. The President of the State Council and the Disciplinary Board reduced her salary, as she had supposedly violated judicial ethics by preparing a report highlighting errors of the State Council.

The State Councils hierarchical structure came up against the public interest very recently, in its dealing with the Lebanese Company for the Development and Reconstruction of the Beirut Central District (more commonly known as Solidereafter its acronym in French). Solidere was established in 1994 as a private joint-stock real estate development company by the states Council for Development and Reconstruction under the auspices of the government headed by Rafik Al Hariri. It was explicitly tasked with the reconstruction of central Beirut, and was given carte blanche to radically transform the capital’s war-torn central district and turn it into the countrys financial center. To do so, the property rights of thousands were transferred to Solidere, while the original owners were given shares in the company. The end result was a notorious reconstruction process riddled with allegations of corruption and conflicts of interest, often invoked as an example of catastrophic neoliberal urban recovery. Solidere itself is largely owned by the Hariri family and numerous local and international financial institutions, while the original owners of the properties that were taken from them generally have an inconsequential number of shares.

The original decree establishing Solidere stipulated that the company would be in existence for only 25 years, but in 2005, another decree was passed by the Council of Ministers expanding the companys lifeline for an additional ten years—from 2019 to 2029. The owner of the landmark Saint George Hotel waged a long and bitter campaign against Solidere and submitted a complaint to the State Council on the basis that the company had encroached on and taken over his private property, and in late 2020, an administrative judge prepared a report and issued a legal opinion that the 2005 decree was unlawful and should be repealed, which means that Solidere should be liquidated. Several months later, the case was transferred from the First Chamber, where the judge worked, to the State Councils Cases Council, which is headed by the President of the State Council and where the judge who prepared the legal opinion would have no say. This prompted worries that the case was going to be “put to sleep,” which turned out to be well-founded: a second judge, this time in the Cases Council, prepared a report and issued a separate legal opinion, ignoring the previous judges report and legal opinion. The second judge instead protected Solidere and concluded that the companys lifespan should be expanded and its operations should remain. It is expected that the Cases Council will rule in favor of Solidere based on this opinion.

These two instances illustrate how the State Council’s intensely hierarchical structure and the significant powers vested in the President of the State Council pave the way for the targeting of specific judges as well as decisions to be made against the public interest, which may be politically motivated given the fact that the President of the State Council and the OSC are all appointed by the Council of Ministers.

Towards an independent administrative judiciary?

On February 12, 2021, the Coalition for an Independent Judiciary in Lebanon—a coalition led by Legal Agenda made up of around 50 anti-establishment political parties and groups, as well as non-governmental and civil society organizations—was launched in an online press conference. As its name indicates, the coalition’s core demand is the radical transformation of the judicial branch in Lebanon so that any avenues for political interference are blocked, and so that judges can act in the interest of the public good and hold corrupt officials to account without any fears of retributions. During the press conference, the coalition announced the finalization of a law proposal for an independent and transparent administrative judiciary, which would replace the 1975 decree.

Similar to the 2018 law proposal to drastically transform the civil judiciary highlighted in Part 1, the law proposal for an independent and transparent administrative judiciary seeks to rectify the structural flaws and deficiencies present in the administrative judiciary. The OSC would be renamed and significantly changed so as to remove the heavily hierarchical structure in the State Council. No longer will it be a seven-member council fully appointed by the executive branch and parachuted from the civil judiciary. Instead, the law proposal seeks to turn it into a 14-member council: In addition to the four ex officio judges who occupy the senior-most positions in the State Council and the heads of the Judicial Inspectorate and the Institute of Judicial Studies, the new OSC would also include elected administrative judges from the State Council, as well as lawyers elected by the Beirut and Tripoli Bar Associations, and university professors elected by their peers in the Lebanese University and another private university. Ballots cast by judges when electing the members of the new OSC must include the names of a man and a woman candidate, so as to ensure better representation for women administrative judges, a particularly crucial point given that 57 percent of administrative judges are women while all all-but-one of the members of the current OSC is a woman.

Administrative judges would be protected from arbitrary transfers from one case or chamber to another without their approval—a practice that is common currently given the extensive powers afforded to the President of the State Council who can ensure that sensitive cases or cases involving allegations of corruption fall in the hands of pliant judges. In addition, the practice of appointing administrative judges as legal advisers to public entities for an additional revenue stream would be stopped, as this practice is used to provide incentives to pliant judges and paves the way for potential conflicts of interest to take place. Administrative judges would also have their rights to freedom of expression and association guaranteed, and in order to ensure accountability and good governance within the State Council, periodic reviews of judges’ performances would take place while mechanisms for meting out appropriate disciplinary measures would be implemented as a replacement to the current ad hoc and arbitrary measures which the President of the State Council can decide on. The law proposal also seeks to remove obstacles that do not allow for fair trials by allowing the right of appeal and by establishing administrative courts in the governorates.

In March 2021, in a press conference hosted by the Coalition, independent MP Osama Saad announced that he had submitted the law proposal to parliament. Thus, a crucial law proposal which could transform the administrative judiciary is currently in parliament. However, this is where the fight for an independent judicial branch truly begins: parliamentary committees that hold their meetings in secrecy and do not publish the minutes are commonly known as the ‘graveyards’ of all law proposals. In other words, behind closed doors, MPs can easily dilute law proposals prepared by civil society and remove or amend any articles they deem to be threatening to their interests with no accountability or oversight. This already appears to have been the case regarding the law proposal on the “Independence and Transparency of the Civil Judiciary.”

At a time when the country is witnessing an unprecedented socioeconomic collapse on all fronts, holding those who brought the collapse to account, whether it be it the oligarchic political elites or their allies in the banking sector or the private sector more generally—is not only needed, but a precondition for any “recovery” for Lebanon. Only an independent judiciary freed from the shackles of political interference can do this, and also put a halt to the dangerous backsliding in civil liberties that Lebanon is experiencing.

Karim Merhej is a former Nonresident Fellow at TIMEP, focusing on corruption, socioeconomic inequality, and governance in Lebanon and Jordan.